While voting rights violations in communities like Randolph County do not tend to get significant attention, they clearly illustrate how important the VRA is at the local level, in small towns and rural communities, where many local officials still feel like they can make voting changes that deprive minorities of their right to participate equally in the political process.

Background

In 1964, there were only approximately 300 African Americans in public office, including just three in Congress. Few, if any, black elected officials were elected anywhere in the South. Today there are more than 9,100 black elected officials, including 43 members of Congress, the largest number ever. And the November 2006 election of Deval Patrick as Governor of Massachusetts makes Patrick just the second African-American governor in the nation since Reconstruction. The first, L. Douglas Wilder of Virginia, left office more than a decade ago, in 1995.

The VRA also has opened the political process for many of the approximately 6,000 Latino public officials that have been elected or appointed nationwide, including 263 at the state or federal level, 27 of whom serve in Congress. And Native Americans, Asians and others who have historically encountered harsh barriers to full political participation also have benefited greatly. As these groups have advanced, so too has American democracy.

However, as effective as it has been, the VRA was never meant to be a quick fix. Recognizing that many state and local governments have continued to erect barriers to minority political participation, no fewer than six Presidents have now supported the enactment or reauthorization of key parts of the law. Despite strong bi-partisan support for the VRA, Congressional opponents have regularly attempted to gut or otherwise weaken its key provisions whenever they have had the opportunity. At the same time, the ACLU and other voting rights advocates have consistently sought to strengthen the VRA in the face of new tactics and strategies developed by local officials to disfranchise voters and to respond to Supreme Court decisions which interfere with the right of minority voters to elect their candidates of choice. All of these factors were very much in evidence during the final legislative debate over H.R. 9, the "Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Renewal Act of 2006."

Passed in 1965, the genius of the VRA was not just that it abolished literacy and other tests, which had been used to deny blacks and other minorities the right to vote. It also prohibited under Section 5 of the act, "covered jurisdictions" from implementing new voting practices without first preclearing them with federal officials to ensure the changes were not discriminatory. And when the act was expanded in 1975 to include protections for U.S. citizens with limited English proficiency, Latinos, Asians, Native Americans and Alaskan Natives also gained new tools to ensure fundamental fairness in voting.

While most of the VRA is permanent, several key provisions are temporary and without concrete evidence of voting discrimination, Congress could not extend the expiring provisions and hope to have the law upheld by the Supreme Court. In addition to Section 5, the temporary sections that were set to expire in 2007 include Section 203, which ensures that citizen voters with limited English proficiency get the help they need at the polls, and Section 8, which authorizes the attorney general to appoint federal election observers where there is evidence of attempts to intimidate minority voters at the polls.

The Outcome of the VRA Renewal Campaign

The campaign to renew the expiring provisions of the VRA culminated with the unanimous passage (98-0) on July 20, 2006, in the U.S. Senate of H.R. 9, "The Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006." The measure had previously been voted out of the House of Representatives (390-33) on July 13. The bill passed Congress with no weakening amendments and was signed into law on July 27, 2006. In addition to renewing the temporary provisions of the VRA for 25 years (Section 5, Section 203 and Section 8, the federal observers provision), the bill strengthens minority voting rights in three very important ways:

1. It repairs the weakening to Section 5 caused by a 2000 Supreme Court ruling (Reno v. Bossier Parish School Board) which allowed government officials to make intentionally discriminatory voting changes as long as minority voters weren't technically made worse off.

2. It repairs those aspects of a 2003 Supreme Court decision (Georgia v. Ashcroft) in which the Court imposed a new legal standard that threatened to turn minorities into second class voters who could perhaps "influence" the election of sympathetic white candidates but could not elect candidates of their choice, including minority candidates. Under the renewed VRA, Congress clarified the retrogression standard of Section 5 to require an objection to any voting change that is intended to reduce - or results in a reduction of - the ability of members of a minority group to be effective in picking the candidate they want to represent their community.

3. The law now allows prevailing parties in voting rights cases to recover expert witness fees, which often can be quite expensive in voting cases.

Equal opportunity in voting still does not exist in many places and race discrimination still denies many Americans their basic democratic rights. Although such discrimination is more subtle today than it used to be, it must still be remedied to ensure the healthy functioning of our democracy. As the Supreme Court has said, the equal right to vote is fundamental because it is "preservative of all rights."

By placing itself at the forefront of the debate over renewal of the expiring provisions of the VRA, and by providing extensive documentation of the problem of ongoing voting discrimination, the ACLU has helped ensure the continued success of one of our nation's most important civil rights laws.

Section 5: Preclearance

• This provision applies to 16 states in whole or in part. Covered jurisdictions must submit proposed changes to any voting law or procedure to the Department of Justice or the U.S. District Court in Washington, D.C for pre-approval, hence the term preclearance. The submitting jurisdiction has the burden of proof to show that the proposed change(s) are not retrogressive,i.e. that they do not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color [or membership in a language minority group].

• The formula used to designate these covered jurisdictions was first adopted in 1965 and then subsequently amended in 1970 and 1975. Section 5 applies to any state or county where a discriminatory test or devicewas used as of November 1, 1964, and where less than 50 percent of the voting age residents of the jurisdiction were registered to vote, or actually voted, in the presidential election of 1964, 1968, or 1972. (In 1975, the formula for assessing levels of political participation was modified to measure participation rates among voting age citizens). Because the array of covered jurisdictions has been rolled forward with each successive reauthorization, these changes have not decreased the number of covered jurisdictions.

• Preclearance does not punish states for the wrongdoings of the past. Nor does it stifle their ability to move forward and progress. That is because covered jurisdictions are able to remove themselves from the restrictions of preclearance through a process known as bailout which sets forth clear and demonstrable standards. Among other things, the jurisdiction must show that (1) It has not used a test or device with a discriminatory purpose or effect with respect to voting; (2) No state or federal court has issued a final judgment against the state or political subdivision for voting discrimination; (3) The jurisdiction has submitted all voting changes for preclearance in compliance with Section 5; (4) The Attorney General has object to a proposed voting change, and no declaratory judgment under section 5 has been denied by the U.S. District Court for the District of Columbia and; (5) The Justice Department has not assigned federal examiners to carry out voter registration or otherwise protect voting rights in the jurisdiction. Currently nine local jurisdictions in Virginia have taken advantage of the bailout provisions thus far.

• Preclearance acts as an essential deterrent because it puts modest safeguards in place to prevent backsliding. As a bipartisan report by the U.S. Senate in 1982 said, without Section 5, many of the advances of the past decade could be wiped out overnight with new schemes and devices. Many scholars and voting rights experts agree that without the deterrent effect of Section 5, there will be little to prevent covered jurisdictions from imposing new barriers to minority participation.

• Section 5 of the VRA should not be made permanent. While making this provision permanent may seem attractive, doing so would make it vulnerable to a constitutional challenge. Because Section 5 is race conscious, it must be able to withstand strict scrutinyby the courts. What this means, in part, is that the provision must be narrowly tailoredto address the harms it is designed to cure. Many legal experts question whether the Court would find a permanent Section 5 to be narrowly tailored, such as to survive a constitutional attack.

• Section 5 should not be changed to apply nationwide. Although this might sound attractive, a nationwide Section 5 would also be vulnerable to constitutional attack as not narrowly tailored or congruent and proportional to address the harms it is designed to cure, as required by the Supreme Court's recent precedents. Section 5 is directed at jurisdictions with a history of discriminating against minority voters. In addition, nationwide application of Section 5 would be extremely difficult to administer, given the volume of voting changes that would have to be reviewed. This expansion of coverage would dilute the Department of Justice's ability to appropriately focus their work on those jurisdictions where there is a history of voting discrimination.

 

Examples of violations of Section 5 preclearance that highlight its ongoing need:

• Since 1968, when the Department of Justice first began to interpose objections to voting changes, more than 1,000 objections have been lodged to 1,331 individual voting changes. The majority of these objections have been lodged since the last reauthorization of the Voting Rights Act in 1982. While the number of objections may be small compared to the total number of submissions, a single objection can protect thousands of voters from unlawful discrimination for many years. These objections can be viewed as the equivalent of 1,331 separate lawsuits brought by the Justice Department or private citizens. However, administrative preclearance under Section 5 has been much more expeditious and effective. Additionally, the ACLU has filed more than 300 voting rights cases over the past 25 years. The facts behind these statistics attest to the ongoing problem of discrimination in voting and the central importance of retaining Section 5 preclearance.

• In July 2005, a panel of three federal court judges issued an injunction against the state of South Dakota, ruling unanimously that state officials must comply with Section 5 of the Voting Rights Act and obtain prior approval from the Department of Justice before implementing a new law that the judges say "gives the appearance of a rushed attempt to circumvent the VRA." The ACLU filed its motion for an injunction in March seeking to halt the state's implementation of House Bill 1265, an emergency measure which allows counties to redraw their county commission district lines more than once per decade. The injunction was sought by the ACLU on behalf of four Native American plaintiffs on the grounds that HB 1265 violated the federal Voting Rights Act as well as a consent decree issued two-and-a-half years ago in Quiver v. Nelson, another voting case brought by the ACLU. According to the ruling issued in July 2005, South Dakota officials have for decades avoided complying with the federal Voting Rights Act by failing to seek prior approval from federal officials before implementing more than 700 changes in election law or voting procedures that effect residents of Shannon and Todd Counties, which are covered by Section 5 of the Act. Plaintiffs have shown that for over 25 years defendants have intended to violate and have violated the preclearance requirements of the VRA," said the three-judge panel. The fact that Secretary of State Chris Nelson had been found to have violated the Voting Rights Act in a different lawsuit in 2002 was another factor cited by the judges in issuing their injunction.

• In the state of Louisiana, no State House of Representatives redistricting plan has ever been precleared since the Voting Rights Act was passed forty years ago. But in 2003, the state wanted to move forward with redistricting plans anyway, and deleted those provisions in the state redistricting guidelines that set out Louisiana's obligations under the VRA. Next, the state chose to spend taxpayer money to protect a redistricting plan that was designed to diminish the political opportunities of African-American voters. A federal court decision forced the state to withdraw its original plan and restore a district where African Americans had an opportunity to elect a candidate of choice

• Latino voters have had similar trouble in Texas, where in 2003, a redistricting plan was drawn to purposefully to limit Latino political representation. The Voting Rights Act was used to stop the plan, restore the districts, and make sure Latinos have a voice in the statehouse.

Section 203: Language Minority Assistance

• Section 203 was added to the Voting Rights Act in 1975 and requires certain jurisdictions to make language assistance available at polling locations for citizens with limited English proficiency. These provisions apply to four language groups: Americans Indians, Asian Americans, Alaskan Natives, and those of Spanish heritage. A community with one of these language groups will qualify for language assistance if (1) more than 5% of the voting-age citizens in a jurisdiction belong to a single language minority community and have limited English proficiency (LEP); OR (2) more than 10,000 voting-age citizens in a jurisdiction belong to a single language minority community and are LEP; AND (3) the illiteracy rate of the citizens in the language minority is higher than the national illiteracy rate.

• Registration and voting materials for all elections must be provided in the minority language as well as in English. Oral translation during all phases of the voting process, from voter registration clerks to poll workers, also is required. Jurisdictions are permitted to target their language assistance to specific voting precincts or areas.

• There are currently a total of 466 local jurisdictions across 31 states that are required to provide language assistance nationwide. Of this total: 102 must assist Native Americans or Alaskan Natives across 18 states; 17 local jurisdictions in seven states must assist Asian language speakers and; 382 local jurisdictions in 20 states must assist speakers of Spanish. The total of these figures exceeds 466 because 57 of these Section 203 jurisdictions across 13 states must offer assistance in multiple languages.

• It's crucial that everyone in our democracy have the right to vote. Yet, having that right legally is meaningless if certain groups of people (such as the disabled or those with limited English proficiency) are unable to accurately cast their ballot at the polls. Voters may be well informed about the issues and candidates, but to make sure their vote is accurately cast, language assistance is necessary in certain jurisdictions with concentrated populations of limited English proficient voters.

• Even though most new citizens are required to speak English, they still may not be sufficiently fluent to participate fully in the voting process without this much-needed assistance. In addition, there are many other citizens, the majority of whom are Latinos and Native Americans, who were born in the United States but have had little or no education and/or are limited English proficient. The failure of certain jurisdictions to provide adequate education to non-English speaking minorities is well documented in legal decisions and in quantitative studies of educational achievement for Latinos and Native Americans. Before the language assistance provisions were added to the Voting Rights Act in 1975, many Spanish-speaking United States citizens did not register to vote because they could not read the election material and could not communicate with poll workers. Language assistance has encouraged these and other citizens of different language minority groups to register and vote and participate more fully in the political process which is healthy for our democracy.

• Language assistance is not costly. According to two separate Government Accounting Office studies, as well as independent research conducted by academic scholars, when implemented properly language assistance accounts only for a small fraction of total election costs. The most recent studies show that compliance with Section 203 accounts for approximately 5% of total election costs.

 

Examples of violations of Section 203 that highlight its ongoing need:

• In 2003 in Harris County, Texas, officials did not provide language assistance for Vietnamese citizens. This prompted the Department of Justice to intervene and, as a result, voter turnout doubled and a local Vietnamese citizen was elected to a local legislative position.

• The implementation of language assistance in New York City had enabled more than 100,000 Asian-Americans not fluent in English to vote. In 2001, John Liu was elected to the New York City Council, becoming the first Asian-American elected to a major legislative position in the city with the nation's largest Asian-American population.

• In July 2005, the U.S. Dept of Justice field a lawsuit against the City of Boston for violations of the federal Voting Rights Act, specifically the language assistance provisions (Section 203) for Spanish language assistance and racial discrimination (Section 2) against Asian American voters. The complaint alleges that Boston abridged the rights of language minority groups by:

- Treating limited English proficient Hispanic and Asian American voters disrespectfully;

- Refusing to permit limited English proficient Hispanic and Asian American voters to be assisted by an assistor of their choice;

- Improperly influencing, coercing, or ignoring the ballot choices of limited English proficient Hispanic and Asian American voters;

- Failing to make available bilingual personnel to provide effectively assistance and information needed by minority language voters; and

- Refusing or failing to provide provisional ballots to limited English proficient Hispanic and Asian American voters.

In San Diego County, California, voter registration among Hispanics and Filipinos rose by over 20 percent after the Department of Justice brought suit against the county to enforce the language minority provisions of Section 203. During that same period, Vietnamese registrations increased by 40 percent.

Sections 6 & 9: Federal Monitors and Observers

• Since passage of the Voting Rights Act of 1965, the Justice Department has regularly sent observers and monitors around the country to protect election-related civil rights. In addition, the Department has routinely deployed its own civil rights personnel to serve as civil rights monitors in jurisdictions not covered by the Voting Rights Act. During the 2004 election, the Department of Justice sent approximately 840 federal observers and more than 250 Civil Rights Division personnel to 86 jurisdictions in 25 states to monitor the general election to ensure voters were free from harassment, intimidation or other illegal activity.